As filed with the Securities and Exchange Commission on June 15, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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MOTOR CARGO INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Utah 87-0406479
- ---------------------------------- -------------------
(State of or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
845 West Center Street
North Salt Lake, Utah 84054
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(Address of Principal Executive Offices)
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MOTOR CARGO INDUSTRIES, INC. 1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
MARVIN L. FRIEDLAND, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
MOTOR CARGO INDUSTRIES, INC.
845 WEST CENTER STREET
NORTH SALT LAKE, UTAH 84054
(Name and address of agent for service)
(801) 936-1111
(Telephone number, including area code, of agent for service)
Copies to: REED W. TOPHAM, ESQ.
STOEL RIVES LLP
ONE UTAH CENTER, 201 SOUTH MAIN STREET, SUITE 1100
SALT LAKE CITY, UTAH 84111
(801) 328-3131
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum
Securities Maximum Aggregate
to be Amount to be Offering Price Offering Amount of
Registered Registered Per Share(1) Price(1) Registration Fee(1)
---------- ---------- -------------- ---------- -------------------
Common Stock, 35,000 Shares $7.50 $262,500 $65.63
no par value 17,500 Shares $8.19 $143,325 $35.83
47,500 Shares $9.00 $427,500 $106.88
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Total 100,000 Shares $833,325 $208.34
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(1) Estimated pursuant to Rule 457(h) solely for the purpose of
calculating the registration fee. As to shares subject to outstanding but
unexercised options, the price and registration fee are calculated based upon
the price at which such options may be exercised. As to the remaining shares,
the price and registration fee are calculated based upon a price of $9.00 per
share, the average of the high and low sales prices for the Registrant's common
stock reported on the Nasdaq National Market on June 11, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to employees as specified by Rule 428(b)(1). Such
documents are not required to be and are not filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000 filed pursuant to Section 13(a) of the Securities Exchange Act
of 1934 ("Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the Registrant's
document referred to in subparagraph (a), above; and
(c) Description of the Registrant's Common Stock, no par value,
contained in the registration statement on Form 8-A filed pursuant to Section
12(g) of the Exchange Act, including any amendment thereto or report filed under
the Exchange Act for the purpose of updating such information.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing of such documents.
Any statement contained herein or in a document, all or a portion of
which is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or amended, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable as the Registrant's stock is registered under Section
12 of the Exchange Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
2
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 16-10a-902 ("Section 902") of the Utah Revised Business
Corporation Act (the "Revised Act") provides that a corporation may indemnify
any individual who was, is, or is threatened to be made a named defendant or
respondent (a "Party") in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal (a "Proceeding"), because he is or was a director of the
corporation or, while a director of the corporation, is or was serving at its
request as a director, officer, partner, trustee, employee, fiduciary or agent
of another corporation or other person or of an employee benefit plan (an
"Indemnified Director"), against any obligation incurred with respect to a
Proceeding, including any judgment, settlement, penalty, fine or reasonable
expenses (including attorneys' fees), incurred in the Proceeding if his conduct
was in good faith, he reasonably believed that his conduct was in, or not
opposed to, the best interests of the corporation, and, in the case of any
criminal Proceeding, he had no reasonable cause to believe his conduct was
unlawful; except that (i) indemnification under Section 902 in connection with a
Proceeding by or in the right of the corporation is limited to payment of
reasonable expenses (including attorneys' fees) incurred in connection with the
Proceeding and (ii) the corporation may not indemnify a director in connection
with a Proceeding by or in the right of the corporation in which the director
was adjudged liable to the corporation, or in connection with any other
Proceeding charging that the director derived an improper personal benefit,
whether or not involving action in his official capacity, in which Proceeding he
was adjudged liable on the basis that he derived an improper personal benefit.
Section 16-10a-903 ("Section 903") of the Revised Act provides that,
unless limited by its articles of incorporation, a corporation shall indemnify a
director who was successful, on the merits or otherwise, in the defense of any
Proceeding, or in the defense of any claim, issue or matter in the proceeding,
to which he was a Party because he is or was a director of the corporation,
against reasonable expenses (including attorneys' fees) incurred by him in
connection with the Proceeding or claim with respect to which he has been
successful.
In addition to the indemnification provided by Sections 902 and 903,
Section 16-10a-905 ("Section 905") of the Revised Act provides that, unless
otherwise limited by a corporation's articles of incorporation, a director may
apply for indemnification to the court conducting the Proceeding or to another
court of competent jurisdiction. On receipt of an application and after giving
any notice the court considers necessary, (i) the court may order mandatory
indemnification under Section 903, in which case the court shall also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification, or (ii) upon the court's determination that the director is
fairly and reasonably entitled to indemnification in view of all the relevant
circumstances and regardless of whether the director met the applicable standard
of conduct set forth in Section 902, the court may order indemnification as the
court determines to be proper, except that indemnification with respect to
certain Proceedings resulting in a director being found liable for certain
actions against the corporation may be limited to reasonable expenses (including
attorneys' fees) incurred by the director.
Section 16-10a-904 ("Section 904") of the Revised Act provides that
a corporation may pay for or reimburse the reasonable expenses (including
attorneys' fees) incurred by a director who is a Party to a Proceeding in
advance of the final disposition of the Proceeding if (i) the director furnishes
the corporation a written affirmation of his good faith belief that he has met
the applicable standard of conduct described in Section 902, (ii) the director
furnishes to the corporation a written undertaking, executed personally or on
his behalf, to repay the advance if it is ultimately determined that he did not
meet the required standard of conduct, and (iii) a determination is made that
the facts then known to those making the determination would not preclude
indemnification under Section 904.
Section 16-10a-907 ("Section 907") of the Revised Act provides that,
unless a corporation's articles of incorporation provide otherwise, (i) an
officer of the corporation is entitled to mandatory indemnification under
Section 903 and is entitled to apply for court ordered indemnification under
Section 905, in each case to the same extent as a director, (ii) the corporation
may indemnify and advance expenses to an officer, employee, fiduciary or agent
of the corporation to the same extent as a director, and (iii) a corporation may
also indemnify and advance expenses to an officer, employee, fiduciary or agent
who is not a director to a greater extent than the right of indemnification
granted to directors, if not inconsistent with public policy, and if provided
for by its articles of incorporation, bylaws, general or specific action of its
board of directors or contract.
3
The Company's Bylaws provide that the Company may indemnify an
individual made a party to a proceeding because he is or was a director of the
Company against liability if the Company has authorized the indemnification
pursuant to (i) the majority vote of the Board of Directors of the Company
present at a meeting at which a quorum is present, with only those directors not
party to the proceeding being counted to satisfy the quorum, (ii) the majority
vote of a committee of the Board of Directors of the Company consisting of two
or more directors not party to the proceeding, (iii) where the procedure set
forth in clauses (i) and (ii) above cannot be satisfied, the majority vote of
the full Board of Directors of the Company, including any directors who are
party to the proceeding, or (iv) the majority vote of the shareholders of the
Company. In addition, a determination must be made in the same manner as
described in the preceding sentence, or by special legal counsel selected by the
Board of Directors of the Company or its committee, to the effect that the
standard of conduct set forth in Section 902 has been met.
The Bylaws also provide that the Company may pay for or reimburse in
advance of final disposition of any proceeding the reasonable expenses incurred
by an individual made a party to a proceeding because he is or was a director of
the Company if authorization of such payment is made in the same manner as
described in the first sentence of the preceding paragraph and a determination
is made in the same manner as described in the last sentence of the preceding
paragraph that (i) the individual has furnished to the Company a written
affirmation of his good faith belief that he has met the standard of conduct set
forth in Section 902, (ii) the individual has furnished to the Company a written
undertaking to repay the advance if it is ultimately determined that the
individual did not meet the standard of conduct set forth in Section 902, and
(iii) the facts then known to those making the determination would not preclude
indemnification under the Bylaws of the Company or Section 904.
The Bylaws of the Company also provide that the Company may
indemnify and advance expenses to any individual made a party to a proceeding
because the individual is or was an officer, employee, fiduciary, or agent of
the Company to the same extent as to an individual made a party to a proceeding
because he is or was a director of the Company, or to a greater extent, if not
inconsistent with public policy, if provided for by general or specific action
of the Board of Directors of the Company.
The Company's Articles of Incorporation and Bylaws have similar
provisions providing that a director of the Company shall not be liable to the
Company or its shareholders for monetary damages for any action taken or any
failure to take any action as a director, except liability for (i) the amount of
a financial benefit received by a director to which he is not entitled, (ii) an
intentional infliction of harm on the Company or its shareholders, (iii) a
violation of Section 16-10a-842 of the Revised Act which prohibits unlawful
distributions by a corporation or its shareholders, or (iv) an intentional
violation of criminal law. Utah law permits director liability to be eliminated
to the extent liability for the items described in clauses (i) through (iv) of
the preceding sentence is preserved.
Indemnification may be granted pursuant to any other agreement,
bylaw, or vote of shareholders or directors. In addition to the foregoing, the
Company maintains insurance from commercial carriers against certain liabilities
which may be incurred by its directors and officers. The foregoing description
is necessarily general and does not describe all details regarding the
indemnification of officers, directors or controlling persons of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
4
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (File No. 333-37211)).
4.2 Bylaws of the Company (incorporated by reference to Exhibit
3.2 to the Company's Registration Statement on Form S-1
(File No. 333-37211)).
4.3 Motor Cargo Industries, Inc. 1999 Stock Option Plan for
Non-Employee Directors (incorporated by reference to Exhibit
10.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999).
5 Opinion of Stoel Rives LLP*
23.1 Consent of Grant Thornton LLP.*
23.2 Consent of Stoel Rives LLP (included in Exhibit 5 to this
Registration Statement)
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* Filed herewith
ITEM 9. UNDERTAKINGS.
(a) RULE 415 UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
5
(b) SUBSEQUENT EXCHANGE ACT FILINGS UNDERTAKINGS.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) INDEMNIFICATION UNDERTAKINGS.
Reference is made to the provisions of the Company's Articles of
Incorporation and the Utah Revised Business Corporations Act, described in Item
6 hereof, which provide for certain rights of indemnification for officers and
directors of the Registrant.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the city of Salt Lake City, State of Utah on June 15, 2001.
Motor Cargo Industries, Inc.
By: /s/ Marvin L. Friedland
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Marvin L. Friedland
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated, on the date set forth above.
SIGNATURE TITLE
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/s/ Harold R. Tate Chairman of the Board and
- ------------------------------------- Chief Executive Officer
Harold R. Tate (Principal Executive Officer)
/s/ Lynn H. Wheeler Vice President, Finance and
- ------------------------------------- Chief Financial Officer
Lynn H. Wheeler (Principal Financial and
Accounting Officer)
/s/ Marvin L. Friedland Director
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Marvin L. Friedland
/s/ Louis V. Holdener Director
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Louis V. Holdener
/s/ Robert Anderson Director
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Robert Anderson
/s/ James Clayburn LaForce, Jr. Director
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James Clayburn LaForce, Jr.
/s/ Merlin J. Norton Director
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Merlin J. Norton
7
EXHIBIT INDEX
Item No. Exhibit
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4.1 Articles of Incorporation of the Company (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form S-1 (File
No. 333-37211)).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1 (File No. 333-37211)).
4.3 Motor Cargo Industries, Inc. 1999 Stock Option Plan for Non-Employee
Directors (incorporated by reference to Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1999).
5 Opinion of Stoel Rives LLP*
23.1 Consent of Grant Thornton LLP.*
23.2 Consent of Stoel Rives LLP (included in Exhibit 5 to this Registration
Statement)
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* Filed herewith